Major Victory in First Circuit Court of Appeals – Discretionary Function Exception Not Applied in Constitutional Tort/FTCA Case!
Ezekiel (“Zeke”) Cortez and I, along with our appellate co-counsel, Annaleigh Curtis and Tom Saunders of Wilmer, Cutler, Pickering, Hale, and Dorr LLP, scored a significant appellate victory for our client with a published decision in the First Circuit Court of Appeals. Torres-Estrada v. Cases (Case No. 21-1521) 2023 WL 8446470. Zeke and I represent Elvin Torres-Estrada, a federal inmate on drug charges, who alleges Bivens and Federal Tort Claims Act (FTCA) claims against the FBI and individual FBI agents for alleged long-continuing violations of his constitutional and statutory rights. Torres-Estrada alleges that the FBI in Puerto Rico, through various tortious acts and constitutional violations, sought to elicit a false confession and frame him for a murder he did not commit. We commenced the action in the Southern District of California. Upon the government’s motion, the case was transferred to the U.S. District Court in Puerto Rico. The government moved to dismiss arguing that Torres-Estrada’s FTCA claims were barred by the discretionary function exception to the FTCA and that all his claims were otherwise time-barred. The District Court dismissed Torres-Estrada’s claims without leave to amend. We appealed.
The Court of Appeals reversed, holding the District Court failed to consider whether the complaint and Torres-Estrada’s FTCA claims adequately alleged unconstitutional conduct to which the discretionary function exception to the FTCA does not apply. The Court flatly rejected the government’s efforts to impose a new standard on plaintiffs to allege facts to “clearly establish” a constitutional violation to avoid application of the exception. As to the “time-barred” claims argument, the Court of Appeals applied the “continuing violation” doctrine to reverse the District Court’s dismissal of at least one of Torres-Estrada’s currently alleged torts claims. Significantly, and in light of relevant new evidence discovered during the proceedings, the Court of Appeals granted us leave to amend the complaint.
This is a major victory for our client and for other plaintiffs bringing claims against the government for constitutional violations. It was a team effort, but I want to commend Annaleigh and Tom for their appellate work on the case and, particularly, Annaleigh for her fine oral argument before the Court of Appeals. Zeke and I are now back in the trial court where we will amend consistent with the appellate ruling, proceed to discovery and depositions, and prepare this matter for a trial in Puerto Rico on behalf of our client. Back in the trial court, the battle continues!
This appeal is also a bit of a “blast from the past” for me. In my first appellate appearance before the Ninth Circuit, as a young lawyer in the 80’s, I won an appeal in a published decision – Baker v. United States (1987) 817 F.2d 560. Baker involved application of the discretionary function exception to the FTCA as well, there in the context of claims arising from the government’s regulation of polio vaccines. Baker was also one of the cases that set up a conflict in the circuits about application of the exception, which conflict was resolved by the U.S. Supreme Court in Berkovitz v. United States (1988) 486 U.S. 531. Bringing it all back around for me, Berkovitz is cited in the Torres-Estrada decision. Pretty cool.
Today, I am 40 years a lawyer. Along with USD law school friends and fellow brand-new lawyers, I was sworn in as a lawyer on this day in 1983. Four decades! It sure doesn’t seem that long, that is until I start thinking about specific cases, events, wins, and losses, many of which happened decades ago! Frankly, it sometimes seems like I only recently figured this whole thing out and came into my own as an effective litigator and trial lawyer. 40 years, amazing!
To which my fellow solo/small firm trial attorneys will surely relate, I have run the gamut of cases, clients, and events in my 40 years:
– from big, complex, “bet the company” cases to silly little cases that good clients wouldn’t let go;
– from big wins to unexpected losses;
– from a $100M+ action against Mexico under NAFTA to simple-as-it-gets actions for money on promissory notes;
– from months long jury trials to one-hour bench trials;
– from dispositive MSJs to inconsequential motions to compel discovery that will never be of any use at trial;
– from ESI-heavy business cases requiring use of sophisticated e-Discovery software to “back-in-the-day” cases involving a banker’s box of documents;
– from large sophisticated institutional clients to Mom-and-Pop shops and individual clients;
– from wonderful thoughtful clients to slippery shady ones;
– from clients who are now life-long friends to a few who are most decidedly not;
– from $150/hr to $525/hr;
– from significant published appellate victories to unpublished appellate losses;
– from cases where I made good chunk of money to cases where I withdrew and had to eat a good chunk of money;
– from lucrative, buy something you would never otherwise buy, sock a chunk away, years to pay the bills, take enough home, just keep the train rolling down the track, years;
– from cases that were all about the money to pro bono cases that were all about the cause or the indigent client in harm’s way;
– from cases I stupidly passed up to cases I stupidly accepted;
– from professional relationships with fine opposing counsels (most of time) to snarky battles with truly awful unethical attorneys (not so often);
– from solo practice to small firms to big firms, and then back around again;
– from opposing counsels who are now quite good friends to opposing counsels whom I fought with daily for months and months and never saw or heard from again; and, overall,
– from the very good (often) to the good (mostly) to the bad (seldom) and all points in between!
And through it all, most every day, most all the time, I have relished and truly enjoyed being a trial attorney, and still do to this day. It’s a great job – not easy, not always fun, often quite difficult, often quite stressful – but its truly a great job.
Over my 40 years, much has changed, but there is much that has not changed about trial practice. At its core, trial practice is much the same as when I started in 1983. We analyze the facts and applicable law of our cases, develop themes, fight for documents and discovery, take depositions, file and argue motions, go to settlement conferences/mediations, work hard to settle cases on good terms, and when that effort fails, we prep cases for trial, stand up before judges and juries, try our cases, and take the victories and loses as they come.
The basics are the same, but much has also changed. Most prominently, how technology has impacted the way we practice law and conduct business. Our complete reliance on computers and software for all aspects of the work; the proliferation of ESI and software necessary to handle it; the ability and expectation that we are always available/always on for our clients and counsel; and, a substantially accelerated pace of practice. In my view, all of this has been for the better. We are in better and more frequent communication with our clients. Software now handles the nuts and bolts of running an office quickly and effectively. Computers and software have dramatically leveled the playing field for solos and small firms to compete with big firms for work. The number of lawyers in California has substantially increased but so has the available work. And, at least for me, the fast pace of litigation and trial practice now is perfect – its suits me, I like it.
“Back in the day”, “back in the day”, “back in the day” – I hear many lawyers regularly talk about “back in the day” as if the practice of law in general, and trial practice in specific, were markedly better “back in the day”. I have fond memories and some great stories from “back in the day”, but I strongly disagree that back then was better than now. It wasn’t.
The business is much more diverse now – not yet far enough along, but demonstrably better than 40 years ago. There are still many older, white men in law firms who run the show, but firm compositions and environments are very different than “back in the day”. And that changes the practice of law for the better, towards greater diversity and better opportunities for all, every day. Clients have better choices for, and better, more available, information about, their lawyers. They can have better, and more responsive, communications with their lawyers.
Cases move quicker and are resolved much more expeditiously than “back in the day” when cases often ran up against the five-year dismissal statute. Remote work has opened up opportunities and improved the work/life balance of a whole generation of young lawyers. Technology now allows solos and small firm attorneys to effectively compete for, and handle, all but a small percentage of the available work, and to connect with other attorneys to jointly work bigger cases. Big firms are down in the trenches with solos/small firms competing for work like never before in my experience. Technology has substantially lowered overhead and increased profit margins for solo and small firms, and there seems to be no lack of work for litigators and trial attorneys. And, at least for me, trying cases is just as much fun, and just as interesting, now as it was when I first stepped into a courtroom way “back in the day”!
All in all, as much as I like to reminisce over cocktails about “back in the day”, I think this is an incredible time to be a trial lawyer and it will only continue to get better and better.
So, 40, in the books!
How about 50?
Yes, absolutely, let’s go!
Over the last few months, I have had the honor of interviewing some of San Diego’s top trial lawyers on my podcast, the Trial Call 10. Even with decades of trial experience, I have learned something new from each and every one of my exceptional guests. And we have more coming! If you are looking for tips to improve your trial practice, or just enjoy hearing passionate lawyers talk about some of their cases, tune into the podcast on Spotify here: https://open.spotify.com/show/1w6g0xGaJrZSuonzgMtwEl
I tried a couple of cases to the bench the first half of this year. But, barring my entry into a new matter shortly before a trial, which occasionally happens, my trial calendar is clear for the remainder of 2023. Tried a few, settled a few, had two resolve by motion, and withdrew from a few with non-paying clients.
My 2024 trial calendar looks much different though – five matters set for jury trials in the first half of 2024! It will be a busy Fall/Winter 2023 into 2024. That is good news!
What is interesting about this breakdown is the Covid factor. The cases I have tried, settled, or withdrew from so far this year were all cases that commenced either before or during Covid. They were cases that had puttered along slowly toward trials through Covid shutdowns and surges, all 2-3, in one case 4, years old when concluded. These were cases where clients had to wait, through no fault of their own, unreasonable periods of time to get resolutions and where the fees to my practice from such cases were spread out over longer than usual periods of time. Bad for the clients, bad for my practice. Contrary to my real fear in March 2020 that Covid would decimate my trial practice, I was reasonably busy during the Covid shut-downs and surges. Happy for that! But the cases did progress differently and slower than in the “Time before Covid”. It was a weird time, to say the least.
In contrast, the cases I have set for trial next year are 2022 post-Covid cases set for trial roughly within 18 months of filing. Granted, it is unclear whether these cases will actually proceed to trial on their trial dates given the remaining Covid-caused court backlog. The courts are still pretty backed up. But they are getting cases set and out for trial and whittling down the trial backlogs. And trial dates are now real dates again as opposed to the place-holders they were during Covid. There is real progress towards a more normal progression of cases in my office, and in the system as a whole.
My Covid case backlog is now in the rear-view mirror. The courts are steadily moving in that direction as well. That is good news – for my clients and for my practice!
It was a pleasure, and lots of fun, to welcome my friend Susan Basinger, Partner at Higgs Fletcher & Mack LLP, to the Trial Call 10 podcast this week! Listen to the episode on Spotify here: https://open.spotify.com/episode/4iDC4m3t65J7NsNEvCDhDH
Episode # 3 of Trial Call 10 with Bibi Fell of Fell Law is live on Spotify and Amazon. Trial Call 10 is about San Diego trial lawyers and their practices. Each episode, I ask a different SD trial attorney the same ten questions (the “Trial Call 10”) about their trial practices and experiences. Check it out, watch for new episodes, keep listening, and, if you like Trial Call 10, subscribe, share it, and spread the word to friends, lawyers, future lawyers. Thanks!
I’m excited to launch my new podcast today! It’s called “Trial Call 10” and can be found on Spotify, and Amazon Music and buzzsprout. It is about San Diego trial lawyers and their practices. The set-up is this: each episode, I ask a different SD trial attorney the same ten questions (the “Trial Call 10”) and hopefully give listeners insight into their practices and personalities. We will feature attorneys in all stages of their trial careers, across all trial practice areas, both sides, civil and criminal. I love talking to trial attorneys. As I finish my fortieth year of litigating and trying cases, I am still astounded by the intellect and talent of San Diego trial attorneys. Trial Call 10 gives me, and you, an opportunity to learn about their practices, trial work, and courtroom experiences. Two episodes of Trial Call 10 are published (links below) featuring trial lawyers Ben Coughlan and Deborah Wolfe. More episodes will be released each week. Again, Trial Call 10 can be found on Spotify, and Amazon Music and buzzsprout. Please check it out, watch for new episodes, keep listening, and, if you like Trial Call 10, subscribe, share it, and spread the word to friends, lawyers, future lawyers.
I hope you enjoy Trial Call 10! Thanks!
Episode 1 – Ben Coughlan
Episode 2 – Deborah Wolfe
Three years ago, poverty attorney Parisa Ijadi-Maghsoodi, civil rights attorney Bryan Pease, and I sued the San Diego Housing Commission alleging the Commission’s implementation of a Section 8 housing voucher program increased segregation in San Diego and trapped families in low income, low opportunity, high crime, neighborhoods. Our lawsuit detailed how the Commission had been setting voucher levels standards woefully low in high opportunity areas, and relatively lower than in low opportunity areas. Last May, after years of tough litigation and tactical delay, the Commission, facing a trial this summer, made a fundamental change to the manner in which it sets its voucher payment standards and aligned them with those issued by the Department of Housing and Urban Development. Because the Commission’s payment standards had been so woefully low, this change constituted nothing short of leapfrogging over years of woefully inadequate voucher levels and was the largest one-year increase national fair housing experts had ever seen. This is a result we had fought hard for during three years of contentious litigation. It was a great result for our clients, for a lot of good San Diegans, and for the city of San Diego.
Deep in the canyon. Late afternoon. Still hot. Shadows invading the spaces all day occupied by bright searing sunlight. Sharp distinct lines between sun and shadow on surrounding rock faces. Waist deep, stinging cold, darkening, water, straddling the eddy line, my frontside feeling edges of the strong pull of the river moving downstream, backside feeling the subtle flow of eddy water moving upstream. In front of me, the main river moving swiftly to right, behind me, the eddy moving slowly to my left. In front of me, deep, surging, powerful, swift, downstream, behind me, shallow, calm, lazy, smooth, upstream. Water, slightly swirling, bubbling, along the line. Trout, at my feet, lazily moving upstream, along the line, in the shade. Almost cold beer in hand. Jill and family behind me on beach built by the eddy, laughing, drinking whiskey, happy.
Late afternoon, standing in an eddy line, on the Colorado River, deep in the Grand Canyon. Perfect.